I realised the power of the judiciary when an Indian Airlines (IA) clerk at the Ranchi airport obliged some of his “friends" with seats in the last Patna-bound flight that day. He overlooked the claim of a gentleman who was the first in the queue. He was a judge of the Ranchi Bench of the Patna High Court. The unusual rush was because the students’ wing of the Jharkhand Mukti Morcha had given a call for bandh the next day.
When the judge’s clerk complained to the airlines’ clerk, he got the reply, “Judge is in the court, not here”. The judge treated the comment as a contempt of court, went to the VIP lounge and started dictating an order that he be sent to the jail for contempt of court. The police would have taken him immediately to the jail and he would have even lost his job. Word reached the clerk of the impending doom.
He dashed to the “court in session”, prostrated before the judge and apologised profusely for what he did. He also mentioned that his wife and children were dependent on his salary etc etc. The judge took pity on him, stopped dictating the order and let him off with a strict warning that he should follow the queue system. I was at the airport, as I had also not been accommodated in the flight.
I narrated the incident to raise some issues. He started taking suo motu action against the erring clerk only because he was supremely confident that the police had no other alternative but to enforce his order. The fact of the matter is that the judiciary has no independent power of its own. It does not have any agency directly under it to enforce its orders and judgements.
The judiciary, wrote Alexander Hamilton, “may truly be said to have neither FORCE nor WILL, but merely judgement… [It] is beyond comparison the weakest of the three departments of power”. He wrote this about the American Supreme Court where “John Rutledge, one of the first justices appointed by George Washington, resigned to become Chief Justice of South Carolina. Not until 1935 did the court have a building of its own”.
How did the judiciary become the weakest of the three estates? “As the American Congress has grown incapable of passing laws involving even straightforward political trade-offs, power has flowed to the executive and judicial branches”. What is said about the apex court in the US can be said about the Indian Supreme Court also.
The Chief Justice of India does not have even a single policeman reporting to him. His security guards are answerable to the Home Ministry under which the Delhi Police come. In short, the judiciary has powers only to the extent the executive is ready to obey its orders. Once the state refuses to accept its orders, it will have only judgements, as mentioned by Alexander Hamilton.
The rule of law is a relatively new concept in India. Until its introduction by the British, it was the word of the ruler which was the law. Now, there is an Indian Penal Code and a Criminal Procedure Code which govern the citizen, irrespective of the position he holds in society. The maxim that the “King can do no wrong” is no longer valid.
However, there is one little problem with the rule of law. It is like a double-edged sword that can harm both the assailant and the assailed. You cannot say the sword is good when you are able to injure or kill your enemy but bad when it hurts you accidentally. It is like democracy.
You cannot say that democracy is good when it brings a rabble-rouser like Narendra Modi to power and bad when a man of impeccable integrity like Dr Manmohan Singh is thrown out of power. The strength of democracy is that it gives the common people the power to choose the kind of rulers that they should have. You may not like Modi or Manmohan Singh but you have to respect them if they are elected to power.
It is also true that a person like Adolf Hitler used the same democracy to come to power and throttle it once he was in power unleashing in the process the Second World War. Small wonder that it is said that a people get the government they deserve. Some of these thoughts were occasioned by the manner in which some recent Supreme Court judgements were treated.
The Sangh Parivar has, for instance, been wanting a Supreme Court verdict on the Ayodhya issue. But till today, the Parivar has not said that it would accept the verdict whether it was in favour of the Muslims or the Hindus. Instead, it wants a legislation on the subject when it enjoys a clear majority in both Houses of Parliament and a majority of the state legislatures.
One of the most shocking comments in the wake of the Sabarimala issue was made by none else than the Attorney General of India, KK Venugopal, the son of a great lawyer. He said that he supported the minority judgement given by a lady judge of the Supreme Court which wanted the traditions like barring entry to women belonging to the 10-50 age group to prevail even in the 21st century.
Venugopal lamented the fact that the court did not take into consideration the majority sentiment in the country. Worse, he even made a reference to a superstitious belief that the recent flood in Kerala was caused by the Supreme Court verdict on Sabarimala. It reminded me of Mahatma Gandhi attributing the 1934 Bihar-Nepal earthquake to the prevalence of untouchability, leading to a public debate with Tagore. Venugopal also pointed to the fact that women themselves were coming to the streets to protest against women’s entry in Sabarimala.
In short, he was articulating the viewpoint that the apex court should not go by the law of the land but by the sentiments of the majority community. No, Venugopal who once accepted the brief of the Kerala Devaswom Board to argue against the entry of women is not the first to articulate such a viewpoint. The present governor of Kerala, Palanisamy Sathasivam, as Chief Justice of India, had articulated such a stance in an order banning a film.
In his order, he said that the film, which depicted the horrors of a dam burst, did not violate any of the cinematographic laws. Yet, he upheld an executive order issued by the then Tamil Nadu Chief Minister Jayalalithaa banning the film, seen in the context of the Mullaperiyar dam issue.
He was the one who was forced to remove some unwarranted and objectionable comments from his own verdict on Australian missionary Graham Staines who was burnt to death along with his teenaged sons Philip and Timothy.
What happened in Kerala with regard to Sabarimala is not unprecedented. When the apex court banned Jallikettu, a cruel practice, perpetuated in the name of tradition in Tamil Nadu, the state government’s efforts were not to enforce the judgement but to find ways to circumvent it. What happened is so well-known that it needs no recapitulation.
Venugopal who referred to the presence of women in the vanguard of the agitation against the Sabarimala verdict should know that they were politically mobilised by some forces which were out to fish in troubled water. It did not occur to him that verdicts are pronounced not on the basis of how it would be received by the general public. He should also have known that an overwhelming majority of women in Kerala did not come on the streets to protest against the verdict.
Venugopal knew only too well that the SC verdict could be challenged by filing a review petition. Until then it was the responsibility of the state and the people to ensure that the verdict was implemented in both letter and spirit. As regards the validity of tradition, does Venugopal know that there was a time when no less a person than Swami Vivekananda was not allowed to enter the famous Kodungallur temple?
This happened in 1892 when the Swami had met Dr Padmanabhan Palpu (1863–1950), in Bengaluru. He was an Ezhava. Palpu had spoken about his experiences as a person from a lower caste community in Travancore. He had explained how he could not practice medicine in his own hometown, despite having been educated in Europe. After listening to him, the Swami decided to visit Kerala.
On his visit, he went to Kodungallur Bhagavathy Temple, dedicated to the Hindu goddess Kali. But he was not given permission to enter the temple despite waiting for three days, because of the reason that a person whose caste was not known could not enter the temple. He refused to say that he was a Kayastha, an upper caste. Vivekananda did not want to interfere with the tradition, so he decided to worship from outside. This incident forced him to say that ‘Kerala is a lunatic asylum’.
A couple of years ago, I visited the same temple and moved about on the campus without any let or hindrance. The Kodungallur temple was infamous for another reason also. It was believed until a few years ago that the Devi would be pleased only if she heard the choicest abuses. So the faithful would go there and shower the Goddess with abuses. This was the tradition in the temple.
I could not get an explanation for this phenomenon except from Prof Omchery NN Pillai. The temple used to be under the control of the Brahmins from Tamil Nadu. The locals resented their presence. So the abuses were not hurled at the deity but at the Brahmins who took shelter there. Finally, they moved out, though the tradition continued.
During an hour or so that I remained at the temple, I did not hear anyone uttering any swear word. The irony is that those who clamour for tradition are the ones who break it. In Kerala, only a few went to Sabarimala till roads were built and communication became easier. Every devout had to abstain from all pleasures, subject himself/herself to discomforts like abandoning footwear, abandoning haircut and shaving etc for 41 days. Today you can find a clean-shaven leader of opposition Ramesh Chennithala going to Sabarimala without observing any of the rituals.
The very people who can break tradition are the ones who plead against menstruating women entering the temple. Many traditions have gone out of the window. It was traditional for the widow to die on the funeral pyre of her husband, a practice ended by William Bentinck, at the prompting mainly of William Carey and Raja Rammohan Roy. Again, it was a tradition not to allow the Scheduled Castes to enter temples.
Even after many years of the Temple Entry proclamation in Travancore, the Scheduled Castes were not allowed to enter the Guruvayoor temple because of its own peculiar tradition. Even Mahatma Gandhi refused to intervene in the name of tradition. Everyone knows what happened when Congress leader Vayalar Ravi, whose wife was a Christian, went to the temple with his grandchild for a religious ceremony.
Here the question is not on traditions. The question is on whether the Supreme Court should be guided by silly traditions or by the Constitution of India. We cannot say that we will accept a verdict only if it is acceptable to us. The law gives the citizen even the right to challenge a Supreme Court verdict but within the framework of the law.
If the experiences of Jallikettu and Sabarimala are anything to go by, we may come to a situation when the court will have to measure public opinion, first, before pronouncing its verdict. In other words, the court verdicts would be applicable only to those who cannot block roads, pelt stones at the police and use television channels to whip up public sentiments against a court decision taken after years of deliberation.
In 1892, tradition prevented Swami Vivekananda from entering the Kodungallur temple. In 2018, tradition prevents the menstruating devout from entering the Sabarimala temple. If would be sadder if the judiciary cannot take a decision which would not be to the liking of the so-called majority. In that case, it would be better to have elected judges, rather than chosen judges.
(Published on 29th October 2018, Volume XXX, Issue 44)